Critical advice of the ACS re use of IMSI-catcher by Dutch FIOD

22 Sep 2015
Thom Dieben
The permanent advice committee (ACS) of the Dutch Bar Association (NOvA) on 11 September last issued an advice on a draft regulation proposed by the Ministry of Economic Affairs. The goal of the draft regulation is – stated succinctly – to authorize the Dutch Fiscal and Economic Crime Investigation Service (FIOD) to independently use a so-called IMSI-catcher. The General Council of the NOvA agreed with the advice of the ACS and forwarded it to the Ministry of Economic Affairs.

The ACS has assessed the draft-regulation and is of the view that it is defective on several points. In summary, the ACS is of the view that:

  • The need to give the FIOD an independent authority to use an IMSI-catcher is insufficiently substantiated by the Minister;
  • If issued, the draft regulation would under certain circumstances allow the FIOD to use an IMSI-catcher without prior authorization of a prosecutor. That is contrary to the case law of the Dutch Supreme Court and the requirement that follow from art. 8 of the European Convention on Human Rights (ECHR). Furthermore, this would lead to unequal treatment between the FIOD and, for example, the Dutch National Police. An article should therefore be added to the draft-regulation which provides that an IMSI-catcher can never be used (not by the National Police nor the FIOD) without prior authorization of a prosecutor;
  • The need to appoint the director of the FIOD as ‘qualified authority’ (art. 1, par. c, sub 4) catcher is insufficiently substantiated by the Minister;

The ACS is tasked with providing the General Council of the NOvA with advice in the field of criminal (procedural) law. Han Jahae and Thom Dieben, both lawyers at JahaeRaymakers, are a member of the ACS.

The full text of the advice (in Dutch) can be downloaded here.

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